Small Window Remains to Launch Mapping Process
Texas counties have a limited window of opportunity to legally clarify the public interest in long-maintained roads. The 81st Texas Legislature passed House Bill 2462 extending the expiration of the original road map legislation to Sept. 1, 2011. House Bill 1117 passed by the 78th Texas Legislature went into effect Sept. 1, 2003, and expired Sept. 1, 2009.
Implementation of the bill, a discretionary measure found in Chapter 258 of the Transportation Code, allows counties to prepare and adopt an official county road map. This map serves as conclusive, legal evidence of a county’s claim to a road and the county’s right to spend public money on the road.
“The statute is not too precise about what is sufficient to ‘initiate’ the process, but we presume passing an order to do so by Sept. 1, 2011, will be acceptable,” said Bob Bass, attorney with Allison, Bass & Associates, LLP. “There is a good chance that a court would allow a county to initiate the project at any time until the statute actually expires, but there would most likely be a challenge to the entire project that is not more fully initiated well prior to the deadline. Ideally, a county should be able to demonstrate that it has actually undertaken the procedures required to implement the road map, in addition to simply passing an order saying they have the intention of commencing the work to implement the road map.”
The overall cost of implementation of a county road map depends on several factors including road miles. However, due to the timeline, these costs are spread over multiple budget years, said Jim Allison, general counsel for the County Judges and Commissioners Association of Texas.
The data used to develop the county road map will have multiple uses to the benefit of the county.
“Don’t look at it as simply a road map,” Bass said. “This ought to be viewed as a dynamic set of data that you can use over and over again.”
For example, the collected information can be used to develop a cost-analysis tool for road budget and road maintenance, to assist in GASB 34 compliance, or to help with homeland security planning.
Bass estimated that very nearly all of the 200 counties that are under 50,000 in population, the target group for the statute, have either implemented Chapter 258, or are actually engaged in the implementation of the road mapping project.
Motley County initiated the process in 2008, said former County Judge Ed D. Smith.
“In my time as county judge there were several incidents where questions and disputes in regard to our roads arose,” Smith said. “We are in farm and ranch country. Many of our roads are through pastures and fields. In early years ingress and egress were based on a gentleman’s agreement and a handshake. Properties have changed hands since then.”
Smith used the county’s 911 map from its council of governments as a basis and contacted another county where the process had been completed. He received copies of their forms, postings, and newspaper ads to use as models.
Motley County proceeded, but missed an important deadline delineated in the statute and decided to abandon the effort. However, when the Legislature extended the deadline, Smith continued the process.
“Before starting the procedure, I already had an issue in progress with two of the roads that were subsequently declared private by the jury of view (as explained later in the article). The methodology used to make them ‘county roads’ did not pass the ‘smell test,’ ” Smith said.
Motley County adopted its county road map in 2010.
Motley County adopted its map in 2006, the year before current County Judge Lonnie Hunt came onboard.
“As far as I’m concerned, it was the best thing that ever happened here,” Hunt maintained. “In my four-plus years, we have had numerous occasions when an issue came up where the first question that had to be answered was, ‘Is this a county road or not?’ The adoption of the road map answers that question definitively. It has saved us a lot of grief.”
A Race Against Time
Prior to 1981, case law found that if a road was used by the public and maintained by the county for more than 10 years, the road became a county road. This process is called prescriptive easement, or the legal right to use another person’s property by continued use without objection by the landowner.
In 1981, Chapter 281 of the Transportation Code took away the ability of counties of 50,000 people or less to acquire a road by prescriptive easement. As of 1981, these counties can only acquire an interest in a road by:
3. dedication of a landowner; or
4. final judgment of adverse possession under the law. Chapter 281 explicitly states that, in this case, adverse possession is not established by public use of a private road with permission of the landowner, or public maintenance of a private road in which the public interest is not recorded.
Each of these four methods requires a clear action by the commissioners court.
Texas law allows property owners to challenge the status of a pre-1981 prescriptive easement road by either placing a locked gate on the road or by filing a lawsuit. The county must then prove that the road was maintained by the county for 10 years and acquired by prescriptive easement. The proof necessary for establishing prescriptive rights prior to 1981 is getting harder to come by.
As time progresses and counties are unable to produce personal testimony and firsthand knowledge of pre-1981 maintenance, counties will be more and more likely to lose in court, Bass said. Losing the right to maintain such roads could affect the rights of interior landowners who need those roads to reach their property.
County Road Map: What it Is…and Isn’t
Many questions have been posed regarding the scope of HB 1117/2462 – what it is, and what it isn’t.
HB 1117 is a mechanism to be used by counties to adopt a county road map listing the roads the county currently maintains.
HB 1117 is not an opportunity to expand ownership, whether through increased lane miles or rights of way, nor is it an alternative method to either open or close existing county roads.
“It’s where you are today,” said Charles Kimbrough, attorney with Bickerstaff Heath Delgado Acosta LLP. “What you’ve currently got on the ground is what you can claim.”
The legislation does not create a “taking” by the county and does not affect true issues of title. Rather, it clarifies the public’s right to use the road and the county’s right to use public funds to maintain the road.
In addition, HB 1117 does not allow any taxing authority to tax a private interest in a road on the map or property “burdened” by a road, except in the case of mineral interests. Should the county provide an order stating it has “abandoned” the road, or ceased maintaining the road, then ad valorem taxes may be assessed upon the land previously burdened by the abandoned road.
Developing a County Road Map:
The first step toward implementation is creating an accurate map including each road in which the county claims the existence of a public interest, pursuant to Chapter 281 of the Transportation Code or other law, or as a result of long-term maintenance of the road using public funds beginning prior to Sept. 1, 1981, up to the present.
The statute requires the map to use a scale of 2,000 feet per 1 inch. Few existing maps are printed in this scale, so to really manipulate the road data, you need a computer-based map, Bass suggested.
Along with in-house data, Bass recommended requesting digitized data from the Texas Department of Transportation and the county’s council of governments, or the entity that maintains the county’s 911 rural addressing data.
Counties who do not have the resources to develop the map may want to consider hiring an outside source.
Informing the Public:
Before adopting the map, the county must issue two notices.
One notice should run in a newspaper of general circulation in the county. The statute requires the notice, which must run once a week for four consecutive weeks, to include:
· a statement that the commissioners court has proposed a county road map that includes every road in which the county has claimed a public interest;
· the location where the map will be on display at the courthouse for public view; and
· the date of a public meeting to allow for public comment.
The map – which must be legible and in the required scale of 2,000 feet per inch – should remain on display from the date of the first published notice until the commissioners court formally adopts the map.
In addition, the county is required to include a notice in the ad valorem tax statement the year before the map is to be adopted. This notice must include:
§ a list of all of the roads in which the county will claim the existence of a public interest;
§ the date of the public meeting to allow for public comment; and
§ a statement regarding the right of a landowner to protest the inclusion of a road on the map.
The commissioners court must conduct a public meeting, at which citizens have the opportunity to verbally protest the inclusion of roads on the county road map or present a written protest. This gives every taxpayer the opportunity to say, “No, this isn’t a county road, and we don’t want it to be on the road system.”
In Case of a Protest:
If a landowner or interested party protests the map, the commissioners court must appoint a jury of view. This jury should consist of five property owners who have no interest in the outcome. During a separate public hearing, the jury of view, after hearing evidence from the protesting land owner and the county in support of its claim of the public nature of the road, will use a majority vote to determine whether or not the county has a valid claim of public interest. The finding by the jury of view is binding on the county and may require revision of the map.
In Motley County, four county roads were protested and claimed as private roads, Smith said. The commissioners court appointed a jury of view, which ultimately determined that two roads were not to be considered as county roads, and also modified the public nature of portions of the remaining two roads.
Adopting the Map:
The commissioners court must conclude all jury of view proceedings and officially adopt the county road map in a second public meeting, which must take place before the 90th day following the first public meeting.
Final Public Notice:
Once the map is adopted, the county must include a notice in the ad valorem tax statement for the year after the county adopts the map. This notice must include:
o a list of all roads in which the county has claimed a public interest and has included on the map;
o the date of the map’s adoption; and
o the date at which the statute of limitations bars a landowner from filing a suit in district court to dispute the county’s claim.
Motley County adopted its county road map and sent out its final public notice in the 2010 tax bills. The total county cost to develop the road map was approximately $600 to $700, Smith said.
Upon adoption, a protesting landowner has two years to file suit in the district court protesting the inclusion of a road on the map, during which time the county still has the burden of proof. If a protesting landowner files suit after the two-year period, the county can assert the two-year statute of limitations, and the burden of proof shifts from the county to the landowner.
Once the county road map is adopted – and the roads survive the two-year statute of limitations – the county won’t have to go to the courtroom to prove its case. Instead, the county can simply point to the map. H – By Julie Anderson